This
Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference,
argues that social obligation theories in property generate previously
unrecognized obligations on the State. Leading property scholars, like
Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the
institution of property contains affirmative duties to the community as
well as negative rights. This Essay argues that those affirmative
duties are two-way streets, and that moral bases for social obligations
also generate reciprocal obligations on the State to protect property
owners. The social obligation theories rely upon a dynamic not static
vision of property rights. The community’s needs change, the conditions
of ownership change, and the appropriate allocation of benefits and
burdens within a society changes over time. Therefore, a legal
obligation that is justified and permissible at the time it is enacted
because it is consistent with moral obligations may become impermissible
over time, even if the content of the legal obligation does not change.
At the extreme, the State’s failure to respond to certain kinds of
changes in the world can lead to a regulatory taking.